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The fallout of the Supreme Court decision in the Sabarimala case is profoundly concerning. On the ground, there is strong resentment and a rejection of the court’s verdict by devotees and by Hindus in general. Women are at the forefront of the protests. There have been attempts by activists and a few women to enter the temple after the apex court order, but those have been met with resistance.

The Kerala government has hardened its stance over implementing the court’s order and for that purpose, has resorted to targeting devotees and demonstrators. This is viewed and also projected as anti-devotee/anti-Hindu. The situation has led to the politicisation of the issue. Kerala, considered a model state with one of the highest literacy rates, is witnessing an unfortunate and unprecedented situation of growing polarisation potentially disturbing its secular ethos. The situation may spill over to the rest of the country. There is a disconnect between the court’s order and the feelings of the people whose deep-rooted religious sentiments have been hurt. This is not a law and order issue alone. The challenge is how to bridge the disconnect between the law and the living reality.

This avoidable situation is a consequence of the apex court order. Was it warranted for the court to get into this sensitive and avoidable issue when no devotee had approached the court with a grievance over discrimination? The decision has raised an important issue of admission of a public interest litigation (PIL) involving a sensitive religious matter. The PIL, as a tool to enforce fundamental rights, has immense significance in a country where access and entitlement to justice is highly skewed and unequal. However, it is prone to misuse.

A spate of petitions have now been filed before the Supreme Court for the review of its order in the Sabarimala issue. The outcome holds immense significance. The occasion provides an opportunity to resolve the matter and help bring sanity on the ground. The court has relied upon numerous previous judgments and on the interpretation of the same, two divergent views have emerged leading to the majority prevailing over the dissenting judgment. The fact is that the interpretation of precedents is liable to render opposite conclusions. It is also important to understand that the state government has changed its stance on the issue more than once before the apex court.

The centuries-old customs and religious practices having the sanction and acceptance of devotees and believers including women have been analysed from the constitutional compass of fundamental rights and equality under the Constitution. A proposition that there is an inherent conflict between the centuries-old practice and fundamental rights, and further that the constitutional protection under Articles 25 and 26 being inconsistent with the religious practice is an extremely difficult and delicate issue.

The doctrine of ‘constitutional morality’ prevailing upon the ‘forbidden domain’ is the root cause of the problem. The Supreme Court in 2015 refused to entertain a PIL which wanted a ban on the practice of killing of animals in the name of religion and held that “it cannot close its eyes to centuries-old tradition”. This view is contrary to its own decision of initially refusing to stay an order of the Himachal Pradesh High Court banning animal sacrifice during Kullu Dussehra in 2014. So, the court, on similar issues of religious practices, has taken conflicting stands.

Under such circumstances the dissent of the lone woman judge assumes greater significance. This reminds one of Justice H R Khanna, the lone dissenting voice in the notorious Habeas Corpus case quoting the great American judge Charles Evan Hughes, “A dissent in the court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Years later, a nine-judge apex court Bench held that privacy is a fundamental right under the Constitution and accordingly held that the Habeas Corpus case was wrongly decided. The court found Justice Khanna to be correct. The judicial history of dissent in India and abroad is replete with cases where the dissent in a judgment has given rise to situations where the error in judgment has been corrected either by the court or otherwise.

The outcome of the review petition is awaited with great anticipation. The apex court, being the court of last resort, is looked upon with utmost reverence. Since the orders are judge-centric and interpretation is variable, the finality of a verdict being infallible is a matter of concern. The American Supreme Court Justice Robert H Jackson wrote in Brown v. Allen (1953): “There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.” This judicial essence has been reflected in the collection of essays published in 2000, to mark 50 years of the apex court: Supreme But Not Infallible, in which Justice B N Kirpal, wrote, “We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the court, though final, is fallible. These essays are a reminder of what the Court is and does.”

In matters of religious faith, belief, customs and rituals that have been practised for centuries without any pernicious effects on society and have the widest acceptance of the people, law or logic may not necessarily resolve a dispute. The courts cannot assume the role of a theological guide or adjudicator on such issues. The court may not be the appropriate forum to resolve such sensitive issues or disputes. The Supreme Court, while hearing the review petitions, will hopefully give due consideration to the essence that it is neither final nor infallible in order to strike a balance between the essential religious practices and the constitutional protection of the right to practice such religious practices without being violative of fundamental rights.

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Srivatsan

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